Claimant seeks damages for injuries he sustained on June 26, 2002 during his
incarceration at Tappan Correctional Facility (Tappan), when he fell after
exiting the shower on his housing unit. The trial of this claim was bifurcated
and this Decision pertains solely to the issue of
The shower area on
claimant's housing unit, 9-3 west, had four individual shower stalls. The
stalls were three-sided cubicles made of concrete blocks. Tile covered cinder
blocks separated the shower stalls from the tiled walkway. The walkway was
three feet wide. There were no shower curtains.
Claimant testified that he entered the shower area wearing rubber slippers and
carrying his towel and the clothes he intended to wear after his shower.
Inmates could hang their belongings on hooks situated opposite each stall. The
hooks were placed at a height of five feet nine inches, except for the hook
opposite the last stall, which was positioned at a height of six and a half
feet. Although no one else was using the showers, claimant chose the last stall
and placed his belongings on the opposite
claimant, the walkway was wet and soapy,
usual. Claimant, however, never complained about the condition of the floor and
was admittedly aware that he could have used a mop in that area. Claimant
showered for 15 minutes and then stepped out of the stall and onto the tiled
walkway. He was wearing his rubber slippers as he dried himself. According to
claimant, as he moved to grab his clothes, his right foot "went
and he fell back towards the shower
Bruce Carver, the plant supervisor at Sing Sing in 2002, testified that he
was responsible for overseeing maintenance at Tappan. He conceded that it was
not unusual to see water in a shower area; however he maintained that the floor
was not slippery. When questioned about the use of mats on the walkway outside
the stalls, he explained that they were not used because, in his experience,
floor mats could be used to conceal weapons.
Carver was familiar with the 1997 and 1999 Department of Correctional Services
(DOCS) Directives addressing shower areas. Specifically, the 1997 Directive
provided that, in shower areas, "[a]nti-slip strips will be installed to prevent
(Ex. 5, Directive 4064, dated April 4, 1997, Section [c]). The 1999
Directive superseded the 1997 Directive and provided that anti-slip strips "may"
be installed. Anti-slip strips had never been installed (Ex. 6, Directive 4064,
dated September 28, 1999, Section [c]).
Superintendent William J. Connolly
has been employed by DOCS for 27 years and in 2002 he was the Deputy
Superintendent of Security Services at Sing Sing where he was responsible for
Tappan. He testified that Tappan was a medium security facility located within
the maximum security facility of Sing Sing. The maximum security yard was in
close proximity to the Tappan building and some of the inmates from Sing Sing
worked at Tappan. Connolly also testified that shower mats were a security
concern because they can conceal weapons or cover broken tiles which inmates
have used to sharpen weapons. Additionally, Connolly stated that anti-slip
strips were problematic because inmates have used the strips like sandpaper to
Lieutenant Mark Royce testified that in June 2002, he was a housing sergeant
at Tappan. As housing sergeant, Royce made rounds of the housing units,
including the shower area of 9-3 west. If he observed water outside the
showers, he made sure that porters set up wet floor signs. He did not recall
any complaints about water not being addressed. Royce explained that shower
curtains were not used because of security concerns. Specifically, it was
important to have visibility in that area.
It is well established that the State has a duty to maintain its facilities in a
reasonably safe condition (Preston v State of New York
, 59 NY2d 997).
The State, however, is not an insurer of the safety of its inmates and
negligence cannot be inferred solely from the occurrence of an accident
(see Killeen v State of New York
, 66 NY2d 850; Condon v State
of New York
, 193 AD2d 874). Additionally, when an inmate fails to use
ordinary care and pursues a dangerous course of conduct, he must take
responsibility for his own negligence (see Carter v State of New
, 194 AD2d 967).
In order to prevail on his claim, claimant must show: the existence of a
foreseeably dangerous condition; that the State created the condition or had
either actual or constructive notice of the condition; that the State failed to
remedy the condition within a reasonable time; that such condition was the
proximate cause of claimant's accident; and that claimant sustained damages
see Gordon v American Museum of Natural History
, 67 NY2d 836;
Ligon v Waldbaum Inc.
, 234 AD2d 347; Mercer v City of NewYork
AD2d 688, affd
88 NY2d 955).
Upon consideration of all the evidence, including listening to the witnesses
testify and observing their demeanor as they did so, the Court finds that the
evidence presented was insufficient to establish that defendant had either
actual or constructive notice of a foreseeably dangerous condition and failed to
remedy it within a reasonable time (
see Pennie v McGillivary
, 15 AD3d 639). Specifically, there was
no credible proof that the walkway was unusually wet for a sufficient length of
time prior to claimant's fall to permit defendant to discover and remedy it
(see Deveau v C.F. Galleria at White Plains, LP
, ___ AD3d ___ [2d
Dept. May 23, 2005]). Moreover, even if this Court found claimant's testimony
worthy of belief, that the walkway was usually wet, proof that defendant was
aware of a recurrent condition in general is not sufficient to establish
constructive notice of the particular condition which allegedly caused claimant
to fall (see Gonzalez v Jenel Mgt. Corp.
, 11 AD3d 656, 657;
McDuffie v Fleet Fin. Group, Inc.
, 269 AD2d 575). Under the
circumstances, the Court finds that the absence of floor mats or anti-slip
strips outside the shower stalls was not a contributing cause of claimant's
fall. It is also noted that the applicable directive does not mandate that
anti-slip strips be installed in shower areas (Ex. 6). In sum, claimant has
failed to satisfy his burden of proof.
Accordingly, defendant's motion to dismiss, upon which decision was reserved,
is now GRANTED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 107215